Citation Nr: 18150338 Decision Date: 11/15/18 Archive Date: 11/14/18 DOCKET NO. 16-04 588 DATE: November 15, 2018 ORDER Entitlement to service connection for a right foot disability is denied. For the period from June 1, 2014 to September 14, 2015, the reduction of evaluation for the Veteran’s cervical spine strain from 20 percent to 10 percent was improper, and the 20 percent evaluation is restored. REMANDED The issue of entitlement to service connection for a right hip disability is remanded. The issue of entitlement to service connection for a right knee disability is remanded. FINDINGS OF FACT 1. The Veteran does not have a right foot disability. 2. The record does not clearly demonstrate that the Veteran’s service-connected cervical spine strain exhibited improvement as of June 1, 2014, and the reduction in the disability rating from 20 to 10 percent as of that date was therefore improper. CONCLUSIONS OF LAW 1. A right foot disability was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2017). 2. Restoration of the 20 percent evaluation for cervical spine strain is warranted for the period from June 1, 2014 to September 14, 2015. 38 U.S.C. §§ 1155, 5110, 5112, 5107 (2012); 38 C.F.R. §§ 3.344, 3.500, 4.1, 4.10, 4.104, Diagnostic Code 7005 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Entitlement to service connection for a right foot disability The Veteran contends that he has a right foot disability that is related to service. Specifically, he has indicated that an incident that caused injury to his right shoulder also resulted in his claimed right foot disability. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Review of the service treatment records, to include those referable to the right shoulder injury, is negative for any diagnosis, complaint, or abnormal finding referable to the Veteran’s right foot. On examination in March 2012, the Veteran’s feet were normal, with no sign of edema, disturbed circulation, weakness, tenderness, instability, or signs of deformity. There was no evidence of pes planus, pes cavus, hammer toe, or hallux valgus. There was no functional limitation of walking or standing. Treatment records after service are also negative for any abnormal finding referable to the Veteran’s right foot. Those records include the report of a May 2013 VA examination. At that time, the examiner concluded that there was no foot disability. As such, the Board concludes that the Veteran does not have a right foot disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board acknowledges the Veteran’s contention regarding the existence of a right foot disability; however, there is no competent evidence diagnosing such a disability. The Board also acknowledges that pain can cause disability to the extent that it produces functional limitation. Saunders v. Wilkie, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018). However, the relevant statute here, 38 U.S.C. § 1110, requires that for the grant of service connection the disability must be due to an identified disease or residual of injury. This principle has been repeatedly reaffirmed by the Federal Circuit, which has stated that “a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran’s service and the disability.” Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Here, there is no functional limitation of the right foot due to pain, and no evidence of an in-service disease or injury. To the extent that the Veteran asserts that he has a right foot disability, the Board observes that he may attest to factual matters of which he has first-hand knowledge, such as subjective complaints, and that his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). He is competent to report incidents and symptoms; he is not, however, competent to render an opinion as to whether there is a currently existing right foot disability, because he does not have the requisite medical knowledge or training, and because such matters are beyond the ability of a lay person to observe. To qualify for compensation under 38 U.S.C. §§ 1110, the Veteran must prove existence of a disability, and one that has resulted from a disease or injury that occurred in the line of duty. Thus, the preponderance of the evidence is against the claim and there is no doubt to be resolved. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As there is no disability due to disease or injury, service connection is not warranted. 38 C.F.R. § 3.310. 2. Rating reduction – cervical strain VA’s Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.10 (2017). In VA’s Rating Schedule, separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. Over a period of many years, a Veteran’s disability claim may require ratings in accordance with changes in laws, medical knowledge, and his or her physical or mental condition. 38 C.F.R. § 4.1. For disability ratings in effect for less than five years, reexaminations disclosing improvement, physical or mental, in a service-connected disability will warrant a reduction in rating. 38 C.F.R. § 3.344(c) (2017). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277 (1992). Prior to reducing a Veteran’s disability rating, VA is required to “comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect.” Faust v. West, 13 Vet. App. 342, 349 (2000), citing 38 C.F.R. §§ 4.1, 4.2, 4.10. These general provisions “impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon review of the entire history of the Veteran’s disability.” Id., citing Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Court has held that such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 421 (1993); see also 38 C.F.R. § 3.344(c). Disabilities affecting the spine are rated either under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) under Diagnostic Codes 5235-5242 or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS Formula) under Diagnostic Code 5243, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. The General Rating Formula provides a 10 percent evaluation for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, the combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a. For VA compensation purposes, normal forward flexion of the cervical spine is 0 to 45 degrees, extension is 0 to 45 degrees, left and right lateral flexion are 0 to 45 degrees, and left and right lateral rotation are 0 to 80 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note (2). For disabilities evaluated based on limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59. Service connection for cervical strain was granted in a January 2013 rating decision. The AOJ assigned a 20 percent evaluation, based on the findings of a March 2012 examination. Notably, this examination took place prior to the Veteran’s separation from service. This examination revealed cervical spine flexion to 20 degrees, extension to 30 degrees, right lateral flexion to 25 degrees, left lateral flexion to 15 degrees, right rotation to 40 degrees, and left rotation to 30 degrees. The examiner noted pain at the end points of all ranges. There was no evidence of radiating pain, muscle spasm, guarding, weakness, loss of tone, or atrophy of the limbs. There was no ankylosis. There was no additional functional loss following repetitive movement. The diagnosis was cervical strain. On VA general medical examination in May 2013, the examiner stated that discrepancies existed as to the existence of and the cause of a neck condition. He noted the Veteran’s report that a neck disability was due to an event in service resulting in his shoulder injury, but also pointed out that there was no onset of pain until much later. He concluded that there was no diagnosis, indicating that the Veteran had full, pain free range of motion. He remarked that if the Veteran had ever had a strain, there was no evidence of such on examination. A June 2013 VA EMG consultation report indicates the Veteran’s complaint of constant neck pain. EMG testing revealed borderline increased insertional activity in the right lower cervical paraspinals. A June 2013 VA orthopedics consultation report notes cervical nerve pathology. In January 2014, the AOJ proposed to reduce the evaluation of cervical strain to noncompensable, based on the May 2013 examination. In a subsequent response, the Veteran stated his belief that the VA examination was inadequate to the extent that the examiner referenced normal, pain free range of motion, which was an inaccurate reflection of his symptoms. A February 2014 VA problem list includes cervical radiculopathy. In March 2014, the AOJ carried out reduction of the evaluation for cervical strain, assigning a noncompensable evaluation effective June 1, 2014. An April 2014 MRI report indicates reversal of the normal cervical lordosis, based on positioning or due to muscle spasm. The cervical cord signal was normal, and there was no evidence of narrowing of the cervical canal. On VA examination in September 2015, the Veteran reported neck spasms that prevented him from turning his head. Range of motion testing revealed forward flexion to 20 degrees, extension to 30 degrees, lateral flexion to 20 degrees bilaterally, and rotation to 50 degrees bilaterally. The examiner indicated that there was pain in all planes of motion. In January 2016, the AOJ issued a rating decision that assigned a 10 percent evaluation for the period from June 1, 2014 to September 14, 2015 (the period that had previously been assigned a noncompensable evaluation). A 20 percent evaluation was assigned from September 15, 2015, based on the findings of the September 2015 VA examination. In his January 2016 substantive appeal, the Veteran limited his appeal to the period during which his cervical spine disability was evaluated as 10 percent disabling. Having carefully reviewed the record, as reflected by recitation of the evidence above, the Board finds that restoration of the 20 percent evaluation for the period from June 1, 2014 to September 14, 2015 is in order. In this regard, it is not entirely clear that the May 2013 examination report reflects improvement in the Veteran’s cervical spine disability. As noted, the Veteran’s initial compensation and pension examination occurred prior to his separation from active service, and reflected a diagnosis of cervical strain and symptoms that clearly supported a 20 percent evaluation. While the May 2013 examiner reported normal, pain free range of motion, the Veteran subsequently disputed those findings and questioned the adequacy of the VA examination. Notably, that examiner did not include any discussion of the Veteran’s history; rather, he indicated that there were discrepancies as to whether there was a neck condition and its cause without identifying any such discrepancies. Moreover, just one month following the May 2013 examination, the Veteran endorsed constant neck pain on EMG consultation, and objective testing at that time revealed pathology in the form of borderline increased insertional activity in the right lower cervical paraspinals. Finally, VA examination in September 2015 revealed limitation of motion that supported a 20 percent evaluation. In essence, the objective evidence as a whole supports an evaluation of 20 percent for cervical strain. Consequently, the Board has determined that it cannot be stated with any certainty that the August 2015 VA examination report demonstrated sustained improvement in the Veteran’s heart disease. Accordingly, the 20 percent evaluation is restored for the period in question. In sum, the Board finds that the AOJ failed to observe the applicable law and regulation in reducing the disability rating assigned for the appellant’s service-connected cervical strain. Under these circumstances, the reduction is void ab initio. Brown, 5 Vet. App. at 422; Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). REASONS FOR REMAND 1. The issue of entitlement to service connection for a right hip disability is remanded. 2. The issue of entitlement to service connection for a right knee disability is remanded. The Veteran seeks service connection for disabilities of the right hip and knee. Service treatment records reflect that the Veteran was seen for complaints of right knee pain in May 2010. Examination revealed tenderness to palpation, and pain on motion. The assessment was joint pain, localized in the knee. A notation of knee joint pain remained among the list of chronic illnesses. In May 2012, the Veteran was seen with complaints of right hip and knee pain causing him to limp. The assessment was chronic pain syndrome. He was seen the following day, and assessed with right leg gracilis muscle strain of unknown etiology. In June 2012, he complained of right inner thigh pain radiating to the posterior medial knee. While VA examiners in May 2013 and September 2015 indicated that there were no diagnoses regarding the Veteran’s right hip and knee, the September 2015 examination report indicates marked limitation of right hip and knee motion. The examiner stated that the Veteran presented as severely disabled on examination, but such contradicted diagnostic testing including normal EMG and normal hip X-rays. He concluded that as diagnostic testing was inconsistent with the examination, no diagnosis could be made. The Board notes, however, that a November 2014 private imaging report indicates evidence of a labral tear at the right hip. Moreover, it is unclear whether the Veteran’s complete history, to include complaints made during and since service, was considered. In this regard, the medical history recited in the September 2015 VA examination report does not reflect such a review. Because the Veteran complained of right knee and hip problems during service and has continued to do so since his separation, it is necessary to obtain clarification regarding whether the Veteran has any disability of the right knee or hip, to include functional limitation due to pain, that is related to service or service-connected disability. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed right knee and hip disabilities. The claims file must be made available to the examiner, and the examination report must reflect that review of the record was completed. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. Following review of the record and examination of the Veteran, the examiner should provide an opinion with respect to whether it is at least as likely as not (50 percent or more probability) that any right knee or hip disability is related to any event of service. The examiner should also provide an opinion with respect to whether it is at least as likely as not (50 percent or more probability) that any right knee or hip disability was caused or aggravated (worsened beyond normal progression) by the Veteran’s service-connected back disability. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the examiner is unable to offer any of the requested opinions, a rationale for the conclusion that an opinion cannot be provided without resort to speculation should be provided, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. The complete rationale for any conclusion reached should be provided. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Barone, Counsel